[1] The Appellants were jointly convicted on three counts under section 36(3) of the Fisheries Act, R.S-C. 1985, c. F-14, as amended. Essentially, both appellants were charged with unlawfully depositing a deleterious substance in water frequented by fish, namely the Greater Cataraqui River. The trial judge described the background in these terms: “The City of Kingston operated a municipal dump site on the west shore of the Cataraqui River adjacent to Belle Island from the early 1950’s to the early 1970’s and after its closure, the City transformed the site into a recreation area.” That site included a municipal golf course and was the subject of several studies concerning possible ground water and surface water contamination.

[2] The Corporation of the City of Kingston (hereinafter “the City”) was separately convicted on four counts under a private information laid by Janet Fletcher. an environmentalist. Mirka Januszkiewicz, the Director of Environmental Services and Engineering with the City was not a defendant in the private information,

[3] In addition, both Appellants were acquitted of the same offence alleged to have occurred on February 7, 1997, and the Crown cross-appealed those dispositions. Fines and orders for studies were imposed on the City on all seven counts but the Crown only appealed those of $10,000 each in the Crown information. The City cross-appealed $30,000 fines on each count in the private information as too harsh. The Crown also cross-appealed Mirka Jiinuszkiewicz’s suspended sentence as too lenient.

[4] The informations were virtually identical, save that the deleterious substance was called “toxic liquid” in the private information, and “toxic leachate” in the Crown’s. Noting, it seems, turns on the choice of words.

[5] The central issue in the appeal is a legal one. The appellants maintain that the appropriate law to be applied to the facts of this case is that recently decided by the Ontario Court of Appeal in R v. Inco [2001] O.J. No. 2098. In that case the Crown appeal “related to whether or not the proper test was applied for determining whether the offence: of impairing water quality had been committed.” [p. 1] In Inco the Crown argued, as McMurtry, CJ. noted, that the interpretations of Judge Austin in Imperial Oil (1995) 17 C.E.L.R- (N.S.) 12 at 18 and Wilson, J., on appeal in Inco, were “unduly restrictive on a plain reading of the Act” Wilson, J. applied the following test in Inco: (1999) 35 C.E.L.R. (N.S) 240 at 245 “…it is appropriate to consider on the impairment issue the entire circumstances of the discharge including the length of time over which it occurs along with the nature, quality, quantity and concentration of the material that is being discharged.” McMurtry, CJ. set forth what Crown counsel described in this appeal as a “two-tier test” at para 52 of the court’s judgment in Inco in these words: “The Imperial Oil test should be applied when determining whether an offence under 5. 30 (1) has been made out. Inherently toxic substances will always fail that test, reflecting zero tolerance for discharging materials that, by their nature, may impair water quality. If the material in the discharge is not inherently toxic, then it will be necessary to consider the quantity and concentration of the discharge as well as the time frame over which the discharge took place.”

[6] For discharges not inherently toxic McMurty, CJ. clearly adopted the test proposed by Wilson, J. in the coral below.

[7] Later the Chief Justice said (in para 55): “The key question to be decided is whether the nickel in the discharge- is an inherently deleterious substance in water, akin to the PCB’s considered in Toronto Electric Commissioners, or rather, like the activated sludge in Imperial Oil a material that is innocuous absent certain conditions surrounding its discharge.”

[8] In Inco the Crown did not allege that nickel was an inherently toxic or harmful substance in water, regardless of the “concentration level of the nickel or the circumstances under which it is deposited. Indeed,” the Chief Justice pointed out, “the Crown relies on the evidence linking the toxic effect of the effluent to the very high concentration of nickel in this particular discharge.” (para 56)

[9] This appellate articulation of the law did not exist when the Justice of the Peace presided at this trial and gave judgment on December 11, 1998 but, of course, Imperial Oil had been the law from February 20, 1995 when Austin, J. gave her decision, and it was binding on the trial judge.

[10] In this appeal the Crown argued that the proper legal interpretation of s. 36 (3) of the Fisheries Act is that what it prohibits is what is deposited, and not its effect on the receiving waters. In the words of Seaton, J.A. in Regina v. MacMillan Bloedel (Albemi) Limited (1979) 47 C.C.C (2d) 118 at p. 121 (B-C-C.A,): “Once it is determined that Bunker C oil is a deleterious substance and that it has been deposited, the offence is complete without ascertaining whether the water itself was thereby rendered deleterious,” As the Crown argued in its Factum at p, 31: “The actus reus is the depositing of the contaminating material.”

[11] At trial it was apparent that the Justice of the Peace applied that principle from the MacMillan case when he noted that leave to appeal MacMillan to the Supreme Court of Canada “was refused. The inference here is that MacMillan Bloedel (1979) is case law in all of Canada.” In my view a refusal to grant leave to appeal cannot lead to any such inference. Refusal to grant leave to appeal leads to no inference since no reasons are given. The Court simply applies its own leave standards to determine the result.

[12] The Justice of the Peace in his reasons for judgment cited a decision of Judge Wallace in R. v. Cyanamid Canada Inc. (1981) 11 C.E.R.L. 31 as accepting “the Prosecution’s evidence that ammonia is harmful to fish. It was not the concentration of the deleterious substance itself that is introduced. Judge Wallace comments “In coming to this conclusion I follow the B.C. Court of Appeal in the case of Regina v. MacMillan Bloedel (1979).'” In his reasons for judgment at p. 37 Judge Wallace said: “I apply the example or analogy referred to by Seaton J.A. in the MacMillan Bloedel case concerning a teaspoon of oil deposited in the Pacific Ocean constituting an offence under section 33 (2) of the Fisheries Act. It follows that it is not material or relevant as to what concentration of ammonia was present in the ammonia effluent of Cyanamid and as to what volume of ammonia was deposited into the Welland River on March 23rd, 1981.”

[13] Judge Wallace was a trial judge in Cyanamid. Judicial comity required that his decision be respectfully considered by the trial judge in this case. As a matter of strict stare decisis, however, the Justice of the Peace in this case was bound by the decision in Imperial Oil which ratio was ultimately adopted, at least in part, by the Ontario Court of Appeal in Inco. In Imperial Oil Judge Austin was sitting in appeal under Part of the Provincial Offences Act, and Judge Wilson sitting in the same appellate capacity in Inco noted that the Court of Appeal dismissed an appeal from Judge Austin’s decision in Imperial Oil (an aspect of the sentence imposed) by way of an unreported endorsement,” [Inco, supra at 244] Of course, McMurtry, CJ. noted in Inco, supra, that “this court did not comment on the correctness of the applicability of the test that she articulated,” referring obviously to Imperial Oil. [para 47]

[14] The Justice of the Peace’s concluded his legal position in this case by saying that “it would seem that MacMillan Bloedel has been applied in Ontario and this Trier of Fact…concludes that the Prosecution and the Crown need only prove in this element of the charge, that substance introduced, toxic liquid by the Prosecution and toxic leachate by the Crown be deleterious or harmful to fish.” [Trial reasons, p. 10] It is apparent from that Statement that the trial judge rejected his own articulation of the legal position advanced by Mr. Doody that a “second interpretation of this clause that after the addition of the leachate, the river water must be proven to be deleterious to fish, that is the degradation of the water must be shown to be injurious to fish.” [Trial reasons, p. S] Obviously what was rejected by the trial judge was the second tier to Chief Justice McMurty’s test in Inco. I adopt Mr Doody’s submission in his factum that “the only conclusion that one can draw from reading the entirety of the Reasons for Judgment is that the Justice of the Peace came to the conclusion that because (as he found) the fish died in the tests conducted in accordance with the protocols, the prosecution was entitled to a conviction.” [Appellant’s Factum, p, 59]

[15] In his discussion about reasonable doubt the Justice of the Peace reviewed some dicta referred to by defense counsel (p. 19) concluding with the idea that it is not necessary for a jury “to believe the defense issue on a vital issue, but that it is sufficient if it is, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused’s guilt.” He described the defence’s observations in these words: “The efforts of the defence in this approach can only be described as massive and almost overwhelming for a Trier of Fact to reach rational conclusions. More time than available is the response which immediately comes to mind when working through the evidence.” Ultimately, he said, he “came to the conclusions supporting the Crown and Prosecutions arguments.” After discussing some defence “accusations” against the Crown’s case, he said at p, 22 of his Reasons for Judgment: “Continuing the exhaustive list of accusations is counterproductive. Instead this Trier of Fact asked itself several questions. (1) Do I believe that the Ministry of the Environment and Beak Laboratories used the same methodology on these samples as they did on thousands of others according to their testimony. Yes, I believe they applied the same protocol. Secondly, do I believe that the Crown and Prosecution witnesses have engaged in some conspiracy against the City and conducted these tests using some extraordinary method to “cook” the results of these particular samples? No. The Court does not believe that. The evidence confirms their adherence to the methodology to protocols (sic). I can find no evidence of a lack of objectivity. The Court after analyzing the data presented, considering the arguments put forth by both sides, and consulting the relevant case law reject the reasonable possibilities at issue and has no reasonable doubts as to the commission of the actus reus in the seven of the eight charges as outlined above.”

[16] As I understand the evidence from counsel’s argument there was no real issue that the Ministry of the Environment and Beak Laboratories had not used the same methodology on the samples as they had on thousands of others.” There was an issue related tp the appropriateness of the methodology, considered from the viewpoint of the appropriate legal standard, but not its clinical consistency as performed by the Crown’s witnesses. That issue was whether or not in situ testing on the days the offences were charged might have indicated that the fluids or leachates were not toxic, and, perhaps not lethal, if in all of the circumstances, and applying the second tier of the Inco test might it not be necessary “to consider the quantity and concentration of the discharge as well as the time frame over which the discharge took place.” It seems to me apparent that the trial judge applied the “inherently toxic” portion of the Inco test rooted in MacMillan Bloedel without ever making a specific finding on the evidence that ammonia is an inherently toxic substance comparable to bunker C oil. His finding in summary is “seven of the eight counts in the charges against the defendants are ruled to be deleterious to fish.’ Incidentally, defense counsel Mr. Doody said he raised no conspiracy theory that the Crown’s scientists had cooked the results of the samples tested with an “extraordinary method.”

[17] Because I have decided that the legal test applied by the trial judge failed to follow Imperial Oil there must be a new trial, and the evidence must be judged in the light of the appropriate standard. I am unable to conclude that had the appropriate legal test been applied to the facts of the case that a conviction was inevitable. Consequently I will not discuss the evidence any more than absolutely necessary to determine this appeal. I also see no useful policy reason to find a dichotomy exists between the interpretations given to s. 30(1) of the Ontario Water Resources Act in Inco and s. 36 (3) of the Fisheries Act given in MacMillan Bloedel. The “two-tier” test offered by Chief Justice McMurtry in Inco assists in interpreting “a deleterious substance” in s.36 (3) since both the provincial and federal statutes deal, essentially, with “impairing water quality,” either per se or those waters “frequented by fish.” Consequently unless ammonia was established to be an inherently toxic substance, it would be necessary in my view under s. 36(3) “to consider the quantity and concentration of the discharges as well as the time frame over which the discharge took place.” I do not see in the trial judge’s reasons that those factors were taken into account in assessing all of the evidence.

[18] The Crown has appealed the acquittal of the City by the trial judge on Count 1. That acquittal, he said, probably resulted from his “inadequate notes” and his “short sightedness in not ordering a transcript of remarks.” In the circumstances he described himself as being “somewhat confused.” Because he was unable to find evidence to support the Crown’s decision to do further testing the trial judge gave the benefit of “this confused state” to the City. Given the findings I have made concerning the other seven counts, and the application, in my view, of the wrong legal standard, I have concluded that the Crown ought to be successful in its appeal on Count 1 Given that I have concluded that a new trial is the appropriate result in the City’s appeal, that result ought to flow in the Crown’s appeal. It is not necessary for me to decide if the reasons of the trial judge were legally irrelevant or represented a misunderstanding and misapprehension of the evidence on Count 1 .